I’m not saying they’re not entitled. I’m not saying the law’s not on their side. I’m saying the big-money copyright ownership gang — the ASCAP‘s, the RIAA‘s, the MPAA‘s — gives the distinct impression of Japanese kamikazes. They’re suing everyone and everything, they’ve lost consumers… it’s quite a thing to see.

On Friday morning, the RIAA released a brief statement; “We disagree with this decision and are considering our next steps.”

That’s right: It means U.S. District Court Judge Michael Davis has once again — for a third time — knocked down a jury’s copyright verdict against Jammie Thomas-Rasset for the unlawful act of uploading other people’s music to the Internet so others could have it for free. This time the remitittur was from $62,500 to $2,250 per song. Yes, per song.

I’ve never suggested that’s uploading music to the Net okay. It’s not, and consistent with what I said yesterday, whether it’s just plain disregard for other folks’ rights and property or ideologically-tinged civil disobedience, if it’s unlawful it should be punished.

But as I also said in a post called “‘Infinity Dollars’ — IP damages and the jury” a while back, where is the sense of proportion among people, the so-called “peers” of the defendant, who could possibly vote for such a preposterous verdict? Is its source news reports about free-money-type verdicts given out like Pez candies to all kinds of legal claimants, utterly out of proportion to the damages suffered? Is it some kind of reverse weird class consciousness punishment thing that I can’t begin to comprehend? Is the distortion caused by allowing the jury to consider the punitive and seemingly arbitrary range of statutory damages available in copyright?

Well, it sure isn’t found in the law or the Constitution, not according to me or according to Judge Davis, who wrote, this time around: Read More…

On Friday morning, the RIAA released a brief statement; “We disagree with this decision and are considering our next steps.”

That’s right: It means U.S. District Court Judge Michael Davis has once again — for a third time — knocked down a jury’s copyright verdict against Jammie Thomas-Rasset for the unlawful act of uploading other people’s music to the Internet so others could have it for free. This time the remitittur was from $62,500 to $2,250 per song. Yes, per song.

I’ve never suggested that’s uploading music to the Net okay. It’s not, and consistent with what I said yesterday, whether it’s just plain disregard for other folks’ rights and property or ideologically-tinged civil disobedience, if it’s unlawful it should be punished.

But as I also said in a post called “‘Infinity Dollars’ — IP damages and the jury” a while back, where is the sense of proportion among people, the so-called “peers” of the defendant, who could possibly vote for such a preposterous verdict? Is its source news reports about free-money-type verdicts given out like Pez candies to all kinds of legal claimants, utterly out of proportion to the damages suffered? Is it some kind of reverse weird class consciousness punishment thing that I can’t begin to comprehend? Is the distortion caused by allowing the jury to consider the punitive and seemingly arbitrary range of statutory damages available in copyright?

Well, it sure isn’t found in the law or the Constitution, not according to me or according to Judge Davis, who wrote, this time around:

The court is intimately familiar with this case. It has presided over three trials on this matter and has decided countless motions. It has grappled with the outrageously high verdict returned in a case that was the first of its kind to go to trial. The court is loath to interfere with the jury’s damages decision. However, the Constitution and justice compel the Court to act. . . .

To protect the public’s interest in enforceable copyrights, to attempt to compensate plaintiffs, and to deter future copyright infringement, Thomas-Rasset must pay a statutory damages award,” Davis wrote. “Plaintiffs have pointed out that Thomas-Rasset acted willfully, failed to take responsibility, and contributed to the great harm to the recording industry inflicted by online piracy in general. These facts can sustain the jury’s conclusion that a substantial penalty is warranted. However, they cannot justify a $1.5 million verdict in this case.

The $625,000 award in favor of Sony is reinstated, and Judge Gertner has to give Sony the choice between accepting a lower award ($62,500) or a new trial. Judge Gertner’s analysis of the Due Process limits on statutory damages and the feelings of Congress about peer-to-peer file sharing, while interesting, are swept aside (for now). The million dollar question, and one I wish the court had answered, is whether Sony can immediately appeal the reduced award or whether it has to proceed in the trial court. Will Sony be trapped in an “endless loop” of going through trials resulting in a damage awards that the court reduces on the basis that the awards are “excessive”? (See Ben Sheffner’s post about the Thomas-Rasset case: “Labels reject remittitur, opt for third trial on damages in Jammie Thomas-Rasset case.”)

The other question that the First Circuit’s opinion raised but didn’t address is: if statutory damages are to be determined by the jury, why does the trial court get to take this decision away from the jury and reduced it via a remittitur? What is the effect of Feltner on the common law practice of reducing damage awards? Where an award is within the statutory range, it seems odd for the court to have authority to reduce it via a remittitur–isn’t this the point of Feltner?.

The question of whether consumers are likely to be confused is the signal inquiry that determines if a trademark infringement claim is valid. This blog is about trademark law, copyright law, free speech (mostly as it relates to the Internet) and legal issues related to blogging.

As for me, I'm a partner and commercial litigator at Archer & Greiner PC* with offices in New York and New Jersey (but active nationwide) and, some say, "IP maven"* with a special interest in copyright and trademark infringement involving the Internet--including advising clients how to avoid them.

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Then there's this kind of odd thing, and also something called Inspired Sites where this blog is categorized under "Naming / Branding / Language" rather than law, which is, as the young folk say, "kind of cool."

Of course, it's easy to game almost any ranking system -- not that I've tried to... as such. These just are what they are.

DISCLAIMER

The opinions expressed here are my own, and not necessarily those of Archer & Greiner, P.C.

THIS BLOG IS ONLY A BLOG, NOT LEGAL ADVICE. IT IS IN PART AN ADVERTISEMENT FOR LEGAL SERVICES BY ME, RONALD D. COLEMAN, BUT I AM NOT YOUR LAWYER. YOU ARE NOT MY CLIENT. JUST WALK BESIDE ME AND BE MY FRIEND.

*The term maven is used to mean "wise guy" here and is not meant to suggest that I am certified or otherwise authorized under bar rules to claim "expertise" in any field of legal practice. But try me.